3  ot,-  cr13 


AN  EXAMINATION 

OF  THE 

CONSTITUTIONALITY 

OF  THE 

ACT  OF  CONGRESS, 

PASSED  IN  1793, 

RESPECTING 

FUGITIVES  FROM  JUSTICE. 


SUPERIOR  COURT  OF  CINCINNATI. 

OCTOBER  TERM,  1851. 

Ex  parte  WILLIAM  CIIILDS. 
HABEAS  CORPUS. 


This  was  a  writ  of  liabeas  corpus 
directed  to  the  Sheriff  of  Hamilton 
County,  and  issued  upon  the  affidavit 
of  William  Childs,  that  he  was  un¬ 
lawfully  restrained  of  his  liberty  by 
Edward  M.  Wise  and  John  Zell.  In 
obedience  to  the  command  of  the  writ, 
Wise  and  Zell  disclosed  the  cause  of 
their  detention  of  Childs,  claiming  to 
hold  him  as  a  fugitive  from  the  jus¬ 
tice  of  the  State  of  Maryland.  Of  the 
return  made  by  them,  and  the  testi¬ 
mony,  the  following  may  be  consider¬ 
ed  a  fair  abstract: 

Childs  is  a  citizen  of  Ohio,  a  mem¬ 
ber  of  theffirm  of  J.  Childs  &  Bros’.  In 
July,  1850,  he  proceeded  to  Baltimore, 
and  there  succeeded,  by  representing 
his  firm  as  having  a  capital  of  eighty 
six  thousand  dollars  invested  in  their 
business,  in  obtaining  goods  from 
Loney,  Townsend  &  Loney,  of  that 
city,  on  a  credit  of  eight  months,  to 
the  amount  of  about  four  thousand 
dollars.  Having  made  all  the  pur¬ 
chases  he  wished  in  Baltimore,  he 
went  to  New  York  City,  made  other 
purchases,  and  then  returned  leisurely 
homewards.  In  September,  1850,  the 
firm  of  J.  Childs  A  Bros’  failed  fora 


very  large  amount,  and  now  propose 
to  pay  not  over  forty  cents  on  the  dol¬ 
lar.  Various  letters  after  this  passed 
from  time  to  time  between  the  parties; 
all  those  written  by  Loney,  Townsend 
&  Loney  containing  assurances  of  their 
continued  confidence  in  the  other  firm, 
notwithstanding  the  failure. 

So  stood  matters  on  the  20th  of 
September,  1851,  when  Mr.  Town¬ 
send,  of  the  Baltimore  firm,  went  be¬ 
fore  a  magistrate  in  Baltimore,  and 
made  an  affidavit,  charging  Childs 
with  having  obtained  these  goods  up¬ 
on  false  pretences.  A  requisition  was 
obtained  from  the  Governor  of  Mary¬ 
land  on  the  Governor  of  Ohio,  and 
Wise  and  Zell  were  deputed  by  the 
former  to  receive  the  prisoner.  They 
obtained  from  Gov.  Wood  a  warrant 
directed  to  “the  Sheriff  of  Hamilton 
County,”  commanding  him  to  arrest 
Childs  and  deliver  him  to  them  for 
transportation  to  Maryland.  Armed 
with  this  warrant,  they  came  to  Cin¬ 
cinnati  accompanied  by  Mr.  1L  S. 
Loney,  and  procured  the  services  of 
one  Dalzell,  who  represented  himself 
to  be  a  constable,  and  who  procured 
what  he  claimed  to  be  an  authority 


2 


from  the  Sheriff  to  make  the  arrest. 

Mr.  Loney  then  sent  a  note  request¬ 
ing  Childs  to  call  on  him  at  the  Bur¬ 
net  House,  as  he  was  there  sick.  Childs 
did  so,  and  found  Mr.  Loney  perfectly 
well.  Loney  then  told  him  that  the 
officers  were  in  an  adjacent  room,  and 
unless  the  debt  was  paid  in  full  he 
must  go  to  Maryland;  but  that  if  he 
would  pay,  the  prosecution  should  be 
dropped.  Childs  declined,  saying  that 
he  could  make  no  preferences  among 
his  creditors;  whereupon  Loney  knock¬ 
ed  on  the  partition  wall  and  Dalzell, 
Zell  and  Wise  came  in,  and  the  arrest 
was  made. 

A  habeas  corpus  was  at  once  issued 
by  Judge  Key,  of  the  Commercial 
Court,  and  upon  it  Chi  ds  was  dis- ' 
charged  on  the  ground  of  a  want  of 
power  in  Dalzell  to  act  as  the  Sheriff’s 
deputy.  Immediately  after  this  decis¬ 
ion,  the  Sheriff  arrested  Childs  under  i 
the  warrant.  A  second  writ  of  habeas 
corpus  was  then  issued  by  the  same 
Judge,  which  resulted  after  an  elabo- 

O  t 

rate  argument,  in  an  able  decision  re- 
manding  Childs  to  the  custody  of  the ! 
Sheriff.  The  Sheriff  then  delivered 
him  to  Zell  and  Wise,  and  at  this  stage 
of  the  proceedings,  the  present  writ 
was  issued. 

Several  days  were  occupied  in  the 
argument  of  the  case  by  Messrs.  W. 
Y.  Gholson,  Caleb  B.  Smith,  and  S. 
P.  Chase,  for  the  apjdicant;  and 
Messrs.  T.  C.  Ware,  R.  D.  Handy, 
and  A.  Taft,  for  Zell  and  Wise. 

After  some  days’  consideration, 
JUDGE  HOADLY  pronounced  his 
opinion  as  follows: 

As  it  is  claimed  that  this  Court  is 
concluded  by  the  decision  of  the  Com¬ 
mercial  Court  upon  every  question 
which  might  have  been  presented  up¬ 
on  the  return  and  testimony  in  the 
case  in  that  Court,  it  becomes  neces¬ 
sary  ti rst  to  examine  the  doctrine  of 

V 

res  judicata.  Does  it  apply  to  pro¬ 
ceedings  in  cases  of  this  kind? 

That  it  does  not,  has  been  decided 
by  the  Court  ot  Exchequer,  in  Eng¬ 
land.  That  Court,  Baron  Parke  pro¬ 
nouncing  the  opinion,  held  that  a  pris¬ 
oner  has  a  right  to  the  opinion  of  eve 
ry  one  of  the  Courts  upon  the  legali¬ 
ty  of  his  detention. 


Ex  parte  Partington, \2>  Meeson  d  Weis - 
by,  678. 

So,  too,  in  Pennsylvania,  the  rule 
has  been  declared  to  be,  that  it  is  a 
question  of  expediency  whether  the 
Court  will  grant  the  second  writ;  but 
that  they  are  not  concluded  from  so 
doing. 

O 

Ex  parte  Lawrence ,  5  Binney,  304. 

Commonwealth  vs.  Hambright,  4  Sera, 
d  R.  149. 

And  in  Vermont,  the  Supreme  Court 
having  refused  to  discharge  one  Holmes 
afterwards  issued  another  writ,  reheard 
the  case,  and  discharged  him. 

Holmes  vs.  Jennison ,  et  al,  14  Peters , 
540,  and  note. 

George  Holmes,  ex  parte,  12  Vermont , 

631. 

And  that  the  practice  has  been  such 
in  Ohio,  is  shown  by  a  similar  decis¬ 
ion  made  by  Judge  Johnson,  in  this 
Court,  in  the  case  of  Ball  vs.  Hand,  in 
1847. 

The  principle  which  applies  here  is 
the  same  that  controls  all  cases  of 
summary  proceedings.  The  judgment 
is  final,  but  not  conclusive  beyond  the 
case  in  which  it  is  pronounced.  (See 
opinion  of  Chief  Justice  Taney,  14 
Peters ,  561.)  And  in  actions  of  eject¬ 
ment.  which  only  regard  possession, 
the  rule  is  the  same. 

The  only  case  to  the  contrary  is  that 
of  Mercein  vs.  The  People,  25  Wend , 
64.  where  the  Court  for  the  correction 
of  errors  in  New  York,  reversing  the 
judgment  of  the  Supreme  Cjurt.  pro¬ 
nounced  the  principle  of  res  judicata 
applicable  to  controversies  between 
parents  for  the  custody  of  their  chil  - 
dren.  That  this  decision,  though 
obeyed,  did  not  command  the  assent 
of  the  Supreme  Court  appears  from 
their  decision  in  the  subsequent  case 
of  The  People  vs.  Mercein,  3  Hill, 
399. 

And  although  the  proceedings  there 
are  under  a  habeas  corpus,  yet  they 
rather  resemble  ordinary  controversies 

w 

in  their  character,  being  between  two 
parties  litigant  for  the  custody  of  a 
child.  Even  under  such  circumstan¬ 
ces  though.  Judge  Johnson,  in  the 
case  referred  to.  held  that  the  rule  did 
not  apply  in  Ohio. 


Under  the  act  of  Ohio,  the  reasons 
which  are  urged  in  favor  of  the  ap¬ 
plication  of  the  rule  of  res  judicata  to 
proceedings  of  this  kind,  do  not  seem 
to  apply  as  forcibly  as  they  would  else¬ 
where.  The  duty  of  allowing  the  writ, 
upon  a  proper  affidavit  being  present¬ 
ed,  is  peremptory.  The  party  holding 
the  custody  must  set  out  the  cause  ot 
detention.  The  Court  mustexamine  in¬ 
to  the  cause,  and  discharge  or  remand, 
according*  as  the  same  is  legal  or  ille- 
gal.  No  room  is  given  for  the  exer¬ 
cise  of  discretion.  And  to  make  the 
case  stronger  against  the  application 
of  the  rule,  the  Legislature  have  pro¬ 
vided  that  there  shall  be  no  second  ar¬ 
rest  for  the  same  cause  after  a  dis¬ 
charge,  thus  admitting  the  rule  ex pres- 
sio  unius  est  exclusio  alt.erius,  and  rais¬ 
ing  the  presumption  that  had  they  in¬ 
tended  that  the  party  remanded  should 
not  have  a  second  investigation,  they 
would  have  so  expressed  themselves. 

That  the  rule  of  res  judicata  does 
not  apply  to  proceedings  of  this  kind, 
may  then  be  taken  as  the  law  of  this 
case. 

The  first  and  most  important  propo¬ 
sition  presented,  and  upon  which  the 
prisoner  asks  his  discharge,  consists  in 
a  denial  of  the  constitutionality  of  the 
Act  of  1793,  under  the  first  section  of 
which  his  extradition  is  sought. 

It  would  be  idle  for  me  to  attempt 
to  express  my  sense  of  the  weight  of 
the  responsibility  which  devolves  upon 
me  in  deciding  this  question.  I  am 
called  upon  to  construe  the  Constitu¬ 
tion  of  the  United  States;  to  define  the 
province  of  the  highest  court  in  the 
land,  and  the  extant  to  which  its 
decisions  carry  me,  and  bind  me  con¬ 
trary  to  my  own  judgment  carefully 
made  up,  and  to  examine  my  duty  in 
the  light  of  my  oath  to  support  that 
Constitution.  From  that  responsibil¬ 
ity,  however,  in  the  hope  to  contribute 
something  towards  a  final  and  correct 
decision  of  the  proposition  in  ques¬ 
tion,  I  do  not  shrink. 

The  first  and  most  obvious  observa¬ 
tion  is,  that  all  agreements  for  the  re¬ 
turn  of  fugitives  from  justice,  are, 
in  their  nature  and  essential  character, 
treaties.  No  nation  is  bound  to  de¬ 
liver  fugitives.  The  instance  of  Kos¬ 
suth,  is  a  recent  illustration,  which 


suggests  itself  at  once.  Only  from 
comity,  will  a  sovereign  State,  in  case 
of  high  crimes,  deliver  up  to  another 
State  refugees  from  the  latter.  And, 
at  the  time  the  Articles  of  Confedera- 
tion  were  adopted,  the  several  States, 
being  sovereign  and  independent,  were 
bound  by  nothing  but  comity,  to  effect 
extraditions  of  this  character. 

So  situated,  in  July,  177 A  the  States 
adopted  those  Articles;  and  in  them 
we  find  the  following  stipulations, 
composing  the  fourth  Article. 

ARTICLE  IV.  The  better  to  secure  and 
perpetuate  mutual  friendship  and  inter¬ 
course  among  the  people  of  the  different 
States  in  this  Union,  the  free  inhabitants  of 
each  of  these  States,  paupers,  vagabonds 
and  fugitives  from  justice  excepted,  shall  be 
entitled  to  all  privileges  and  immunities  of 
free  citizens  in  the  several  States;  and  the 
people  of  each  State  shall  have  free  ingress 
and  regress  to  and  from  any  other  State,  and 
shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same 
duties,  impositions  and  restrictions,  as 
the  inhabitants  thereof,  respectively,  provi¬ 
ded  that  such  restriction  shall  not  extend  so 
far  as  to  prevent  the  removal  of  property 
imported  into  any  State,  to  any  other 
State,  of  which  the  owner  is  an  inhabitant; 
provided  also  that  no  imposition ,  duties  or  re  - 
strictions  shall  be  laid  by  any  State,  on  the 
property  of  the  U.  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with 
treason,  felony,  or  other  high  misdemeanor 
in  any  State,  shall  flee  from  justice,  and  be 
found  in  any  of  the  United  States,  he  shall 
upon  demand  of  the  Governor  or  Executive 
power  of  the  State  from  which  he  fled,  be 
delivered  up,  and  be  removed  to  the  State 
having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given  in 
each  of  these  States,  to  the  records,  acts, 
and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  State. 

Thus,  and  in  connexion  with  the 
other  clauses  quoted,  the  provision  in 
question  was  first  agreed  upon  by  the 
several  States;  and,  as  in  its  nature,  it 
is  a  treaty  or  compact,  so  it  remained 
in  the  Articles  of  Confederation,  for  no 
power  was  given  to  the  Congress  to 
legislate  it  into  operation.  True,  in 
case  of  a  dispute  between  the  States, 
on  this  and  every  other  subject,  they 
might  arrange  a  sort  of  arbitration  un¬ 
der  the  9th  Article,  but  they  possessed 
no  power  to  enforce  this  provision,  and 
it  is  a  historical  fact,  that  the  power 
was  never  claimed  to  exist. 

Has  that  power  which  was  wanting 
to  the  Congress  of  the  Confederation, 
been  granted  to  the  Congress  of  the 


I 


Constitution?  If  so,  in  wliat  part  of 
that  instrument  is  this  grant  of  power? 

It  is  adopted  from  the  Articles  of 
Confederation  with  a  slight  change 

o  o 

of  language,  thus  : 

O  O 

“A  person  charged  in  any  State,  with 
treason,  felony,  or  any  other  crime,  who 
shall  flee  from  justice  and  be  found  in 
another  State,  shall,  on  demand  of  the  Ex¬ 
ecutive  authority  of  the  State  from  which 
he  fled,  be  delivered  up,  to  be  removed  to 
the  State  having  jurisdiction  of  the  crime.” 

It  stands  in  the  second  section  of 
Article  4,  the  first  clause  of  which  pro¬ 
vides  that 

“Citizens  of  each  State  shall  be  entitled 
to  all  the  privileges  and  immunities  of  cit¬ 
izens  in  the  several  States.” 

The  third  and  last  clause  provides  for 
the  extradition  of  fugitives  from  labor, 
while  this  stands  between  them.  Why 
were  these  three  provisions  thrown  into 
one  section?  Was  it  not,  because  be¬ 
ing  articles  of  compact,  they  naturally 
associate  together? 

But  he  who  compares  the  Articles  of 
Confederation  with  the  Constitution,  is 
at  once  struck  with  another  fact. — 
What  has  become  of  the  last  clause  of 
the  4th  Article  of  Confederation,  which 
theroimmediately  succeeded  the  clause 
in  question?  Where,  and  how  changed 
do  we  find  it  in  the  Constitution?  The 
answer  is  to  be  found  by  reading  sec¬ 
tion  1,  of  the  4th  Article  of  the  Consti¬ 
tution. 

“Full  faith  and  credit  shall  be  given  in 
each  State  to  the  public  acts,  records  and  ju¬ 
dicial  proceedings  of  every  other  State. — 
And  the  Congress  may,  by  general  laws,  pre¬ 
scribe  the  manner  in  which  such  acts,  records 
and  proceedings  shall  be  proved,  and  the  effect 
thereof” 

Now,  why  this  addition,  if  without 
it  the  power  in  Congress  to  legislate 
is  implied  ?  It  was  not  affixed,  we 
may  conclude,  by  men  so  able  as  those 
who  framed  this  instrument,  without 
just  cause,  and  the  result  is — we  can¬ 
not  avoid  it — that,  in  their  opinion, 
without  this  specific  grant  of  power, 
Congress  would  have  been  powerless 
in  this  matter. 

And  why  is  this  last  cited  Section 
removed  from  the  juxtaposition  in 
which  it  stood  in  the  Articles  of  Con¬ 
federation,  and  thus  made  a  Section 
by  itself?  And  those  other  provi¬ 
sions,  its  neighbors  for  nine  long  years 
of  the  Confederation,  thrown  together 


as  a  separate  section  ?  They  are  alike 
in  their  nature,  kindred  subjects,  and 
even  in  the  Constitution,  form  sections 
of  the  same  Article.  Why,  unless 
for  the  reason  that  inasmuch  as  to  one, 
which  was  an  article  of  compact  be¬ 
fore,  a  legislative  power  in  Congress 
has  been  added,  it  is  properly  separat¬ 
ed  from  the  others.  The  former  is 
now’  no  longer  a  mere  compact  be¬ 
tween  States,  it  includes  a  grant  of 
pow’er  to  the  United  States — the  latter 
remain  as  they  were. 

And  this  view  is  strengthened  by  the 
fact  that  the  3d  Section  of  this  Arti¬ 
cle  contains  the  grant  of  two  powrers 
to  Congress,  viz  :  to  admit  new’  States, 
and  to  regulate  and  dispose  of  the 
Territory  of  the  United  States.  And 
the  4th  Section  enjoins  a  duty  upon 
the  United  States  to  guarantee  to  each 
State  a  republican  form  of  govern¬ 
ment,  and  protect  each  against  inva¬ 
sion.  Why  this  separation  ?  If  there 
is  a  power  in  Congress  to  legislate  for 
the  extradition  of  fugitives,  <fec.,  why 
not  unite  Sections  2  and  3 — if  a  duty 
is  enjoined  upon  Congress,  or  the 
National  Government,  to  supervise  this 
extradition,  w7hy  are  not  Sections  2 
and  4  joined  together  ? 

The  inevitable  conclusion  is,  that 
each  of  these  Sections  differ  from  the 
others.  The  first  contains  what  was 
originally  a  compact,  and  still  retains 
that  character,  with  a  clause,  howe¬ 
ver,  giving  power  to  Congress  to  pro¬ 
vide  for  the  manner  of  its  execution. 
The  second  contains  provisions  which 
are  mere  compacts  : — were  so  in  the 
instrument  from  w’hich  they  were  ta¬ 
ken,  and  are  substantially  unchanged 
in  letter,  or  spirit,  depending  for  their 
execution  upon  the  good  faith  of  the 
States,  unless  from  the  fact  that  the 
Constitution  is  the  supreme  law  of  the 
land,  as  well  as  a  compact  between 
sovereignties,  they  have  acquired  a 
self- executing  quality.  The  third  is 
a  mere  grant  of  power  to  Congress, 
and  the  fourth  enjoins  upon  the  Gen¬ 
eral  Government  a  positive  duty. 

It  now  becomes  proper  in  the  train 
of  argument,  to  renew  a  suggestion 
made  a  short  time  since.  This  extra¬ 
dition  clause  gave  no  legislative  power 
to  the  Congress  of  the  Confederation 
— it  is  unchanged  substantially  in  the 


5 


Constitution — whence  then  does  our  National  Government,  or  any  depart- 
present  Congress  derive  its  claim  of  ment  or  officer  thereof.  The  demand 
power  ?  is  to  be  made  by  the  State  whence  the 

The  tenth  Article  of  the  amendment  flight  took  place,  and  the  natural  con¬ 
clusion  is, though  the  particular  officer 
is  not  pointed  out,  that  it  is  to  be  upon 
the  State  where  he  has  taken  refuge. 
No  governmental  action  is  called  for 
whatever.  No  power  then  to  legislate 
it  into  execution,  can  be  implied  in 


to  the  Constitution  provides  that 

»> 

“  The  powers  not  delegated  to  the  United 
States,  Ac.  are  reserved  to  the  States  respec¬ 
tively,  or  to  the  people.” 

And  to  understand  the  force  and 
effect  of  these  amendments,  it  may  be 
well  to  recur  to  the  preamble  of  the  Congress, 
resolution  of  the  Congress  of  1789,  Judging  this  clause,  then,  by  its 
wdiich  submitted  them  for  adoption  to  history,  its  position  in  the  Constitu- 
the  States.  It  is  this  : 

“  The  Convention  of  a  number  of  the 
States,  having  at  the  time  of  their  adopting 
the  Constitution,  expressed  a  desire,  in  or¬ 
der  to  prevent  misconstruction,  or  abuse  of 
its  powers,  that  further  declaratory  and  re¬ 
strictive  clauses  should  be  added  :  And  as 
extending  the  ground  of  public  confidence 
in  the  Government,  will  best  insure  the  bene¬ 
ficent  ends  of  its  institution;  Resolved,”  Ac. 


tion,  the  history  and  position  of  other 
provisions,  the  specific  grants  of  power 
to  Congress,  and  the  general  grant 
of  implied  power,  there  cannot  be  a 
doubt,  that  in  leoislatino-  it  into  ex- 
ecution,  Congress  has  exceeded  its 

7  O 

proper  powers. 

What  are  the  decisions  of  the  high¬ 
est  tribunal  in  the  land,  the  Supreme 
The  clause  in  question  delegates  no  Court  of  the  United  States,  upon  the 
power  in  terms,  and  in  its  nature,  it  is  clause  in  question,  and  how  far  do 


a  matter  of  State  duty.  Such  it  was 
considered  for  years  before  the  Con¬ 
stitution  was  formed.  How  is  this 
incident  annexed  ? 

The  first  section  of  the  first  Article 
of  the  Constitution  provides  that  “All 
legislative  power  herein  granted,  shall 
be  vested  in  a  Congress,”  &c.  The 
eighth  section  commences  thus.  “The 
Congress  shall  have  power : — to  lay 
andcollecttaxes,&c.,&c.,  <fcc.,  through 
a  long  list  of  specifically  granted  pow¬ 
ers,  closing  with  this  general  clause: 

"  To  make  all  laws  which  shall  be  neces¬ 
sary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Govern¬ 
ment  of  the  United  States,  or  in  any  depart¬ 
ment  or  officer  thereof.” 


they  bind  this  Court  to  withhold  ac¬ 
tion  upon  an  opinion,  which  seems  to 
be  as  well  sustained  as  the  one  just 
expressed  ? 

The  only  cases  decided  by  that  Court 
upon  the  subject  of  extradition,  regard 
the  second  and  third  sections  of  the 
act  of  1793,  and  not  the  one  in  ques¬ 
tion  at  all.  The  Supreme  Court  have 
never  decided  that  Conoress  has  the 
constitutional  power  to  legislate  for  the 
extradition  of  fugitives  from  justice. 
But  in  two  cases,  they  have  affirmed 
the  constitutionality  of  legislation  by 
Congress  upon  the  subject  of  fugitives 
from  labor.  And  it  becomes  neces¬ 
sary,  therefore,  now  to  examine  those 


decisions,  and  ascertain  how  far  they 

.  bear  upon  the  questions  involved  in 

And  this  is  the  extent  of  the  im-  j  this  case. 


plied  powers  of 


Congress. 


There  The  first  is  the  celebrated  case  of 


must  be  a  power  vested  in  the  General  Prigg  vs.  Pennsylvania,  16  Peters , 


Government,  or  in  some  department 
or  officer  thereof,  and  then  Congress 
may  pass  all  laws  necessary  and  pro¬ 
per  to  carry  it,  as  well  as  the  specific 
powers  given  in  this  Section,  into  ex¬ 
ecution. 


539.  The  State  of  Pennsylvania  had 
passed  a  law,  among  the  provisions  of 
which  was  one  against  kidnapping. 
Prigg  was  a  slaveholder,  residing  in 
Maryland  ;  slaves  had  escaped  from 
.  ,  him  and  taken  refuge  in  Pennsylva- 

JNow,  in  the  extradition  clause,  no  nia,  whereupon,  he  came  into  that 
power  is  given  to  the  General  Govern-  State,  seized  the  fugitives,  and  re- 
ment,  or  any  department  or  officer  turned  with  them  to  his  residence, 
thereof.  IS  one  tv  as  under  the  Con-  And  the  question  was  whether  the  act 
federation,  and  the  provision  was  then  of  Pennsylvania,  which  proposed  to 
the  same.  No  duty  is  imposed  on  the  punish  him  for  this  as  for  kidnapping, 


6 


was  constitutional.  The  Supreme  Court 
decided  that  without  legislation  or  even 
process  of  law,  the  master  had  the 
right  of  recaption,  the  Constitution,  so 
to  speak,  executing  itself,  and  that  any 
law  which  interfered  with  this  right, 
violated  the  Constitution.  This  was 
the  point  before  the  Court;  all  their 
remarks  bearing  upon  it  were  proper 
and  legitimate,  and  all  their  remarks 
beyond  it  are  simply  obiter  dicta. 
The  Court  were  to  consider  an  act  of 
Pennsylvania,  not  ol  Congress  :  they 
were  to  say  whether  the  former  was 
in  violation  of  the  Constitution,  not 
whether  the  latter  was  agreeable  to  it. 

The  case  of  Jones  vs.  Vanzandt, 
5  Howard,  215,  in  which  the  point 
did  arise  for  decision,  shows  that 
the  Court  made  no  new  examination. 
Judge  Woodbury  contents  himself  with 
saying,  that  since  the  decision  in  Prigg 
vs.  Pennsylvania,  the  question  has  been 
settled.  It  is  evident  that  the  atten¬ 
tion  of  the  Court  was  not  directed  to 
the  obiter  character  of  that  decision, 
and  under  the  impression  that  there 
had  been  an  adjudication  binding  as 
a  precedent,  they  not  only  declined  to 
disturb  but  even  to  examine  it. 

Under  these  circumstances,  even 
laying  aside  the  objection  that  the  Su¬ 
preme  Court  have  no  legislative  power, 
no  jurisdiction  beyond  “cases”  com¬ 
ing  before  them,  and  therefore  no 
power  absolutely  to  bind  inferior  courts, 
except  in  those  “cases,”  it  may  seri¬ 
ously  le  asked  whether  the  constitu¬ 
tionality  of  legislation  by  Congress  as 
to  the  fugitive  slave  clause  even  can 
be  considered  as  settled  in  the  Su¬ 
preme  Court  in  favor  of  the  legislation. 
There  has  been  an  obiter  dictum ,  and 
a  decision  without  examination,  upon 
the  authority  of  this  obiter  dictum.  It 
seems  to  be  an  appropriate  case  for  a 
careful  re-examination,  and  an  elabo¬ 
rate  decision  by  that  court. 

If  such  is  the  case  as  to  the  fugitive 
servant,  then  a  fortiori  is  it  as  to  the 
fugitive  criminal  clause.  And,  at 
all  events,  these  decisions  only  bind 
courts  examining  the  latter  clause  so 
far  as  their  reasons  and  arguments 
apply  to  it. 

Following  this  rule,  which  all  will 
admit  as  satisfactory,  let  us  examine 
the  Prigg  decision :  one  by  one  let  the 


grounds  upon  which  it  is  founded  pass 
before  us,  that  we  may  see  how  far  they 

:  apply  to  the  clause  in  question. 

And,  in  doing  this,  this  court  is  not 
wanting  in  respect  for  that  decision — 
of  whose  lamented  author  it  is  my 
privilege  to  have  been  a  pupil.  I  am 
aware  that  a  large  and  increasing 
number  of  the  profession  do  not  yield 
assent  to  its  arguments — that  it  is 
often  characterized,  to  use  the  lan¬ 
guage  of  another  member  of  the  Ohio 

;  O  O 

Judiciary,  with  respect  to  it,  as  “not 
having  the  ring  of  the  true  metal,” 

I  but  it  is  evident  that  the  duty  this 
court  has  to  perform  is  to  examine  it 
in  its  bearings  upon  the  clause  in  ques¬ 
tion,  and  not  the  one  in  regard  to 
which  it  was  pronounced. 

Judge  Story’s  first  reason  for  affirm¬ 
ing  the  constitutionality  of  legislation 
by  Congress  in  execution  of  the  fugi¬ 
tive  servant  clause  is,  the  national 
character  of  the  duty  required,  and 
the  difficulty  of  its  performance,  except 
under  the  supervision  of  the  Federal 
Government.  Of  all  arguments  in 
favor  of  a  claim  of  power,  this  is 
perhaps  the  most  dangerous.  If  the 
framers  of  our  organic  law  did  not 
see  this  view  of  the  matter  in  a  light 
sufficiently  vivid  to  induce  them  to 
grant  the  power  expressly,  we  have 
no  right  to  infer  it.  And  no  court 
has  ever  yet  gone  so  far  as  to  imply 
a  power  in  Congress  to  legislate,  from 
the  fact  that  by  such  legislation  the 
end  could  be  better  attained  than  by 
Slate  action.  And  Judge  Story  rather 
uses  this  consideration  as  an  argument 
strengthening  and  giving  force  to  the 
reasons  subsequently  adduced,  than  as 
a  distinct  basis  upon  which  to  rest  the 
claim  of  power. 

The  second  reason  is,  that  as  the 
reclamation  of  fugitive  slaves  is  a 
“  case  arising  under  the  Constitution,” 
Congress  can  devolve  the  execution  of 
the  clause  upon  the  Federal  Courts, 
as  in  the  second  and  third  sections  of 
the  act  they  had  attempted  to  do.  But 
the  execution  of  the  fugitive  criminal 
clause  is  confided  by  the  first  section  of 
the  act  to  the  Governors  of  the  States, 
and  not  to  the  Courts  at  all,  and  there¬ 
fore  the  argument  has  no  application 
here. 

The  third,  last,  and  principal  rea- 


7 


son  advanced  by  Judge  Story,  consists  ' 
in  the  argument  that  a  duty  is  here 
imposed  upon  the  national  govern¬ 
ment,  and  therefore  a  corresponding- 
power  of  legislation  necessarily  results.  ' 
The  syllogism  may  be  stated  thus  : 

Where  a  national  duty  is  imposed, 
means  are  given  to  the  Federal  Gov- 
ernment  to  perform  it. 

Such  a  duty  is  imposed  in  the  fugi¬ 
tive  servant  clause.  Therefore  there 
are  are  means  (i.  e.  legislative  power,) 
to  perform  it. 

That  a  power  to  legislate  in  such 
cases,  appertains  to  Congress,  cannot 
be  denied.  It  is  expressly  given  in 
the  last  portion  of  the  eighth  section 
of  the  first  article,  which,  in  terms, 
gives  Congress  power 

“To  make  all  laws  which  shall  be  necessa¬ 
ry  and  proper,  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution,  in  the  Government 
of  the  United  States  or  in  any  department  or 
officer  thereof” 

Of  course,  where  there  is  a  duty, 
there  is  a  power  to  perform  it,  and  if 
such  power,  then  a  power  in  Congress 
to  supervise  its  execution. 

But  does  the  minor  of  this  syllogism 
apply  to  the  fugitive  criminal  clause? 
Is  any  duty  there  imposed  upon  the 
Government  of  the  United  States,  or 
any  department  or  officer  thereof,  from 
which  a  power  can  be  implied?  If  so, 
what  is  it? 

Certainly  it  is  not  a  national  duty  to 
make  the  demand  ;  —  that  is  for  the 
Executive  of  the  State  from  wffience 
the  flight  took  place.  Nor  is  it  any 
more  a  national  duty  to  make  the  sur¬ 
render.  Naturally  and  necessarily,  it 
must  be  the  duty  of  some  officer  of  the 
State  in  which  the  accused  is  found. 
No  national  duty  wTas  created  by  the 
same  words  in  the  Articles  of  Confed¬ 
eration.  Nor  is  any  here  imposed  upon 
the  ‘‘government  of  the  United  States, 
or  any  department  or  officer  thereof ;” 
and  that  no  national  duty  is  here  im¬ 
posed,  was  evidently  the  view  of  the 
Congress  of  1793,  when  they  confided 
the  discharge  of  it  to  the  Executive 
authorities  of  the  several  States. 

And  it  is  worthy  of  remark,  that  thus 
wTas  destroyed  the  only  argument  by 
which  the  power  of  Congress  to  legis¬ 
late,  can  be  supported.  For,  if  the 
duty  here  is  not  national,  Congress 


cannot  legislate;  and  if  they  can  legis¬ 
late,  it  must  be  to  provide  for  the  dis¬ 
charge  of  a  national  duty,  by  national 
means.  And  to  assume  the  power 
from  the  fact,  that  the  duty  is  imposed 
upon  the  ‘‘Government  of  the  United 
States,  or  some  department  or  officer 
thereof,”  and  then  in  exercising;  the 
power,  to  devolve  the  performance  of 
the  duty  upon  the  State  authorities, 
would  be  a  stretch  of  power  not  often 
equalled  in  our  history. 

And  the  three  examples  of  similar 
implications  of  power,  put  by  Judge 
Story  in  this  part  of  the  decision,  show 
that  this  conclusion  is  correct.  The 
power  to  apportion  for  representatives 
in  Congress,  necessarily  follows  from 
the  power  expressly  granted  to  Con¬ 
gress,  and  corresponding  duty,  to 
enumerate  for  that  very  purpose. — 
The  power  to  legislate  a  treaty  into 
execution,  is  the  result  of  the  txpress 
power  of  the  President  and  Senate  to 
make  one.  And  the  right  of  Congress 
to  give  power  to  the  U.  S.  Courts,  by 
habeas  corpus ,  to  protect  members  of 
Congress  in  their  freedom  from  arrest, 
is  but  an  instance  of  judicial  jurisdic¬ 
tion,  claimed  as  of  ‘a  case  arising  un¬ 
der  the  Constitution,”  and  therefore, 
wholly  inapplicable  to  the  clause  in 
question,  which  is  not  proposed  to 
be  executed  throug-h  our  courts.  No 
instance  is  here  cited,  nor  can  any 
case  be  found  where  the  right  in  Con- 
gress  to  legislate  has  been  implied 
from  a  duty  imposed  on  States.  As 
well  would  they  have  the  right  to  en¬ 
force  by  legislation,  the  various  pro¬ 
hibitions  upon  the  States;  as  that  they 
shall  pass  laws  impairing  the  obli- 
gadon  of  contracts,  &c. 

The  result  then  is,  that  as  the  high¬ 
est  court  of  our  country  has  never  af¬ 
firmed  the  constitutionality  of  such 
legislation,  and  as  the  reasons  of  the 

O  #  #  ' 

decisions  which  have  been  made  up¬ 
on  the  other  sections  of  this  act,  do 
not  apply  here,  there  is  no  reason  why 
this  Court  should  not  obey  its  own 
convictions  of  duty. 

One  other  argument,  however,  de¬ 
serves  notice  before  passing  from  this 
branch  of  the  case.  The  practice  of 
the  whole  country,  the  opinion  of  the 
entire  profession,  of  statesmen,  and 
legislators,  is  referred  to  as  authority. 


8 


Now,  recollecting  that  the  necessary 
result  of  the  reservation  to  the  States 
and  the  people,  of  all  power  not  grant¬ 
ed.  is.  that  the  power  must  be  exclu¬ 
sive  somewhere,  (and  so  the  Supreme 
Court  held  in  the  Prigg  case.)  the  ex¬ 
ercise  of  a  power  in  the  States  to  legis¬ 
late  for  the  extradition  of  fugitives, 
might  as  fairly  be  inferred  from  the 
fact  that  almost  every  State  in  the 
Union  has,  on  the  Statute  Book,  laws 
bearing  upon  this  subject.  But  it  is 
not  true  that  the  practice  has  been 
unbroken  of  regarding  the  power  of 
Congress  as  complete.  Against  the 
current  of  opinion,  mainly,  it  must  be 


has  passed  a  sufficient  law  in  dis¬ 
charge  of  the  constitutional  duty  im¬ 
posed  upon  her,  [Swans  Statutes , 
546.)  under  which  the  custody  of  the 
prisoner  is  not  claimed,  he  is  unlaw¬ 
fully  deprived  of  liberty. 

Bat  admitting;,  for  the  sake  of  arcru- 

o  o 

ment,  that  Congress  may  legislate, 


through 


whom 


must  it  put  the  ma¬ 


chinery  of  the  law  in  motion  ?  There 
is  no  more  familiar  principle  than  this  : 
acts  of  Congress  are  to  be  executed  by 
officers  of  the  United  States,  State 
laws  by  State  officers.  Congress  can¬ 
not  impose  duties  upon  officers  of  a 
State,  and  so  the  Supreme  Court, 


admitted,  setting  in  that  direction,  is  [( Taney  C.  J.)  seem  to  have  consid- 
ever  seen  struggling  the  eddy  of  dis-  ered  in  Prigg  vs.  Pennsylvania. 
sent.  To  two  distinguished  instances  True,  it  is  there  claimed,  that  in  the 
among  the  Judiciary.  I  need  only  now  reclamation  of  fugitives  from  labor, 
refer.  In  the  case  of  Jack  vs.  Martin,  State  magistrates  may  act  voluntarilv, 
14  Wend,  505,  Chancellor  Walworth  though  they  cannot  be  compelled  to 


most  ably  presented  the  views  of 
which  the  present  decision  is  but  a 
feeble  reiteration.  And  I  have  before 


act.  But  in  what  character  do  they 
act?  Their  official  character  is  de¬ 
rived  from,  has  the  extent  given  it 


me  a  manuscript  copy  of  a  most  mas-  by,  and  is  to  be  exercised  only  in  the 
terly  discussion  of  the  question,  by  mode  prescribed  by  the  State.  It 


is 


Chief  Justice  Hornblower,  in  the  the  creature  of  the  State.  It  subsists 
case  of  The  State  vs.  the  Sheriff  of  only  at  the  will  of  the  State.  And  the 
Burlington .  delivered  as  the  opinion  of  State  having  given  no  power  of  action 
the  Supreme  Court  of  New  Jersey,  at 


the  February  term,  1836,  resulting  in 
a  conclusion  of  the  unconstitutionality 
of  Congressional  legislation.* 

But.  although  practice,  common  un¬ 
derstanding,  and  opinion,  long  contin¬ 
ued,  may  give  definitions  to  words. 


under  an  act  of  Congress,  it  would 
s  em  that  the  individual  has  no  right 
to  use  his  official  character  an  1  power 
under  it.  And  lor  this  reason,  the 
State  of  Illinois  and  many  other  States 
have  expressly  authorized  and  directed 
their  Governors  to  act  under  the  law 


and  put  constructions  upon  language,  lof  1793. 


differing  from  those  which  would  oth- 
erwise  be  received,  vet  they  have 
never  been  held  to  confer  powers,  not 
given  in  the  constitution.  This  is  a 
mode  of  amending  that  instrument. 


But  the  Supreme  Court,  in  the  Prigg 
case,  having  decided  that  a  right  of 
recaption  exists;  that  the  Constitution 
executes  itself;  that  the  ownership  by 
the  master  follows  the  slave  into  a  free 


not  provided  for  in  it.  And  the  only  State:  that  a  master  may  retake  his  fugi- 
safe  rule,  is  to  adhere  to  that  written  tive  servant  without  legal  process  if  he 
of  our  liberties  as  it  is.  can  doit  without  a  breach  of  the  peace, 


guarantee 

o 


without  resorting  to  such  a  fluctuating  it  necessarily  follows  that  a  State  magis- 


and  uncertain  guide. 


trate.  who  delivers  him  to  the  owner,  be- 


The  conclusion,  therefore,  at  which  comes  the  owner’s  agent,  by  this  adop- 
the  court  arrives  is,  that  the  power  of  tionof  his  acts  which  the  delivery  and 
legislation  upon  this  subject  has  not  receipt  imply.  And  thus  his  volun- 
been  conferred  upon  Congress,  but  is  tary  action  is  protected.  In  this  view 
exclusive  in  the  States,  and  as  Ohio  only  can  there  be  voluntary  action  by 

State  officers  in  carrying  out  the  act 
And  it  is  a  fact,  proper  here  to  bereferr-|°l  Congress.  They  act,  not  as  magis- 


ed  to,  that  at  least  two  members  of  the  pres-  Jt rates,  but  as  citizens.  They  cannot 

ent  Supnme  Court  of  Ohio,  have,  within  two  use  the  power  given  them  by  \he  State 

years,  publicly  avowed  their  concurrence  with  r  &  J 

views  similar  to  those  of  the  present  decision,  jo  carry  out  an  act  of  Congress,  for 


9 


the  State  did  not  give  it  for  that  pur¬ 
pose.  And  they  are  not  officers  of 
the  United  States,  having  no  commis¬ 
sions  from  the  President. 

In  this  case,  however,  there  is  no 
right  of  recaption.  The  State  of  Mary¬ 
land  does  not  own  Childs,  and,  there¬ 
fore,  unless  the  Constitution  executes 
itself  in  this  clause  as  well  as  the 
other,  so  that  any  citizen  may  make 
the  arrest  and  delivery,  and  the  de¬ 
mand  may  he  made  upon  any  one,  a 
proposition  to  be  considered  shortly, 
there  can  be  no  legal  arrest  under  this 
section  of  the  act  of  Congress  by  State 
officers,  and  there  can  be  no  action  by 
them  in  their  official  character ,  even  if 
that  proposition  be  correct. 

The  laws  of  Ohio  do  not  authorize 
the  issuing,  by  the  Governor  of  Ohio, 
of  a  warrant  for  the  arrest  of  a  citizen. 
His  power,  derived  from  the  Consti¬ 
tution  and  laws  of  the  State,  does  not 
extend  so  far.  And  when  a  warrant, 
as  in  this  case,  is  issued  under  the 
great  seal  of  the  State,  countersigned 
by  the  Secretary  of  State,  purporting 
to  be  “in  the  name  and  by  the  au¬ 
thority  of  the  State  of  Ohio,”  and 
signed  by  the  Governor  in  his  official 
capacity,  it  is  simply  void.  No  stat¬ 
ute  of  Ohio  has  authorized  such  a  use 
of  her  name  and  seal,  or  of  the  offices 
of  Governor  and  Secretary. 

And  this  warrant  is  directed  to  the 
“  Sheriff  of  Hamilton  county.”  No 
law  of  Ohio  has  empowered  this  offi¬ 
cer  to  act  under  the  act  of  1793.  Nor 
is  there  any  principle  by  which  a 
right  in  the  sheriff  to  arrest  is  sus¬ 
tainable.  If  the  Governor's  action  is 
proper,  even  if  he  is  protected,  under 
the  view  thu  the  voluntary  execution 
of  the  act  by  a  State  officer,  can  be 
justified,  yet  the  act,  which  requires 
or  authorizes  him  to  cause  the  arrest, 
does  not  sanction  his  employing  the 
shrievalty  of  a  county  in  this  service. 
He  may  appoint  an  agent,  but  the  lat¬ 
ter  must  be  a  person,  a  citizen,  and  not 
a  mere  embodiment  of  power.  If 
his  voluntary  action  is  proper,  then 
Charles  J.  W.  Smith,  if  requested 
by  him,  might  arrest.  But  he  must 
depend  upon  the  individuality  of  the 
citizen,  Smith;  and  cannot  invoke  the 
official  power  of  the  officer.  For  this 
official  character  is  a  creature  of  law. 


and  exists  only  for  the  purposes  of  its 
creation,  and  this  is  not  one  of  them. 
So  then,  even  if  the  citizen,  Reuben 
Wood,  could  act  in  obedience  to  the 
law,  or,  as  Governor,  could  issue  the 
warrant,  his  right  does  not  extend  be¬ 
yond  the  employment  of  an  agent, 
:  and  the  wariant  not  being  an  instru¬ 
ment  of  procuration,  or  if  it  be,  not 
being  directed  to  a  citizen  competent 
to  accept  an  agency  of  this  character  j 
i  but  to  an  official  power,  unauthorized 
j  to  accept  it,  the  arrest  is  illegal. 
Charles  J.  W.  Smith  cannot  execute 
the  warrant,  for  it  is  not  directed  to 
him.  The  sheriff  cannot,  for  no  law 
of  the  State  authorizes  him. 

It  follows  that  the  warrant,  arrest, 
and  delivery  here  are  all  in  violation 
of  law.  And  we  come  then  to  the 
only  remaining  ground  upon  which 
the  detention  of  the  prisoner  by  Wise 
and  Zell,  can  be  claimed,  to  wit :  the 
doctrine  maintained,  as  it  would  seem 
from  Judge  Wayne's  opinion  in  the 
Prigg  case,  by  Judge  Baldwin,  that 
the  Constitution  fully  executes  itself, 
and  no  legislation,  State  or  National, 
is  necessary.  Without  denying,  for 
it  is  unnecessary,  the  applicability 
which  that  eminent  jurist  made  of 
such  a  rule  to  the  fugitive  servant 
clause,  there  would  seem  to  be  grave 
and  weighty  reasons  why  it  should  not 
apply  here.  In  that  case,  ownership 
may  accompany  the  escape  of  the 
fugitive,  a  tight  of  recaption  without 
process  of  law  may  follow  him,  but 
here  neither  exists.  An  executive  de¬ 
mand  must  first  occur.  Upon  whom  ? 
The  Constitution  is  silent,  but  reason 
and  common  sense  would  point  to 
some  officer  to  be  designated  by  the 
sister  State.  Is  the  requisition  of  the 
Governor  of  Maryland  an  appoint¬ 
ment  of  every  man  in  Ohio,  into 
whose  hands  it  may  come,  as  a 
special  constable,  to  arrest  William 
Childs?  Is  any  citizen  to  take  the 
requisition,  make  the  arrest,  then  treat 
the  demand  as  being  upon  him,  and 
deliver  up  the  prisoner?  Or  can  the 
arrest  be  made  by  any  body,  in  antici¬ 
pation  of  a  demand?  It  is  said  that 
an  immense  body  of  men  were  sworn 
in  as  special  constables,  in  London, 
at  the  time  of  the  great  Chartist  meet¬ 
ing,  in  1848,  but  a  constabulary  force 


10 


comprising  every  elector  of  a  great 
state  like  Ohio,  or  New  York,  was 
never  heard  of  before.  The  truth  is, 
that  the  Governor  of  Virginia,  on  ac¬ 
count  of  whose  scruples  about  deliver¬ 
ing  up  an  escaping  criminal,  this  act 
of  1793  was  passed,  was  right.  The 
clause  needed  legislation:  legislation 
pointing  out  upon  whom  the  demand 
should  be  made,  and  who  should  cause 
the  arrest.  The  idea  that  a  demand 
made  by  so  high  an  authority  as  the 
Executive  of  a  State,  was  to  be  upon  so 
indefinite,  and  vague,  and  inferior  a 
personage  as  anybody  indifferently 
into  whose  hands  the  requisition  might 
come,  never  entered  into  the  concep¬ 
tion  of  the  framers  of  that  instrument. 
It  was  not  so  under  the  Confederation  : 
then  each  State  had  to  designate  the 
person  upon  whom  the  demand  was 
to  be  ma  le.  The  clause  is  unchanged, 
and  the  necessary  presumption  is,  that 
no  change  was  made  in  order  that  the 
States  might  continue  to  select  the 
officer  most  convenient  to  them. 

But  the  delivery  to  Wise  and  Zell 
was  not  made  by  a  citizen.  The 
‘•'Sheriff”  it  was,  not  the  individual 
Smith,  so  that  even  if  the  latter  could 
righ fully  treat  the  demand  as  made 
upon  him,  and  make  delivery,  the 
former  cannot. 

It  has  been  suggested,  that  as  the 
prisoner  is  now  in  possession  of  the 
agents  of  Maryland,  the  Court  will 
not  disturb  them  in  returning’  with 
him  :  that  a  constitutional  right  has 
been  enforced,  and  the  Court  will  not 
interfere  upon  habeas  corpus,  but  leave 
Childs  to  his  action  against  the  Gov¬ 
ernor  and  Sheriff,  who  have  acted  il¬ 
legally.  But  one  illustration  is  need¬ 
ed  to  show  the  fallacy  of  this.  True, 
the  constitutional  right  may  be  exer-  i 
cised,  but  it  must  be  in  a  constitution-  ' 
al  mode,  that  is,  in  such  mode  as  State 
legislation  shall  point  out.  If  a  trea¬ 
ty,  which,  under  the  Constitution,  is 
part  of  the  supreme  law — as  much  so  as 
the  Constitution — should  provide  for 
the  extradition  of  fugitive  criminals  to 
France  or  Great  Britain,  by  some  off! 
cer  to  be  named  by  Congress,  and  Con¬ 
gress  failing  to  make  designation,  an 
arrest  should  be  made  by  one  of  the 
marshals,  and  the  prisoner  be  delivered 
to  the  agents  of  the  foreign  State,  would 


a  court  hesitate  to  release  him  ? 

Before  passing  finally  from  the  con¬ 
sideration  of  this  part  of  the  case,  it 
is  proper  to  add  that,  as  a  citizen,  I  re¬ 
gard  the  provisions  of  the  act  of  1 793, 
respecting  fugitives  from  justice,  as 
eminently  wise  and  just,  and  should  re¬ 
joice  to  see  them  adopted,  and  made 
binding  upon  the  citizens  of  Ohio,  as 
they  have  been  in  Illinois,  and  most  of 
the  States,  by  the  passage  of  a  State 
law,  authorizing  and  directing  our 
Governor  to  carry  them  into  execution, 
i  and  giving  to  him  for  that  purpose  full 
control  over  the  Sheriffs,  and  other 
county  officers. 

But  to  pass  from  all  considerations 
j  of  constitutional  law,  is  William  Childs 
a  fugitive  from  justice,  within  the 
meaning  of  the  act  of  1793?  Has 
h efled  from  justice  within  the  meaning 
of  the  Constitution  ?  Can  a  citizen 
of  one  State  commit  a  crime  in  ano¬ 
ther,  return  home  in  the  regular  course 
of  business,  without  haste,  and  by  a 
circuitous  route,  carry  on  a  friendly 
correspondence  with  his  victims,  after 
his  crime  is  discovered,  and  be  a  fugi¬ 
tive  ?  It  is  not  sufficient  that  the  party 
is  charged  in  one  State,  and  found  in 
another.  The  words  of  the  Constitu¬ 
tion  are  “  a  person  charged  in  any  State 
with  treason,  felony  or  other  crime, 
who  shall  flee  from  justice,  and  be 
found  in  another  State,”  Ac.  The  word 
“  flee,”  means  something.  The  para¬ 
graph  containing  it  was  not  inserted 
carelessly.  Had  the  Constitution  read 
thus,  “  a  person  charged  in  any  State 
with  treason,  felony,  or  other  crime, 
who  shall  be  found  in  another  State,” 
cVc.,  it  would  have  meant  just  what 
the  State  of  Maryland  now  claims  that 
it  does  as  it  stands.  It  will  not  do  to 
say  that  he  who  is  charged  with  crime 
is  a  fugitive,  if  he  does  not  appear  to 
answer  process.  A  citizen  of  Ohio, 
who  can  have  no  notice  of  proceedings 
in  Maryland,  cannot  thus  be  made  to 
flee  ”  from  the  justice  of  that  State. 
And  were  this  the  true  rule,  the  words 
“  who  shall  flee  from  justice.”  would 
be  rendered  superfluous,  for  every 
man  would  be  a  fugitive,  who  was 
charged  in  one  State,  and  found  in 
another,  whereas  the  framers  of  the 
Constitution  added  here  the  words, 

“  who  shall  flee  from  justice.” 


11 


Now,  is  not  the  construction  ob¬ 
vious  ?  Admit  that  the  charge  need 
not  be  made  before  the  flight,  though 
adherence  to  grammatical  rules  would 
lead  to  a  contrary  result,  yet  there 
must  be,  in  the  departure  from  the 
State,  an  intent  to  avoid  the  conse¬ 
quences  of  crime.  A  citizen  of  a  State 
who  should  commit  a  crime,  and  leave 
the  State,  is  necessarily  a  fugitive.  So 
he  who  flees  from  process.  But  there 
is  no  case  where  circumstances  like 
those  now  in  testimony  have  been  held 
to  confer  a  fugitive  character  on  the 
accused.  In  Exparte  Samuel  Adams , 
7  Law  Reporter ,  386,  the  Court  con¬ 
sidered  that  Adams  fled  from  justice 
because  having  made  an  appointment 
to  meet  a  creditor  at  6  o’clock  P. 
M.,  he  left  the  State  an  hour  previous, 
the  creditor  then  intending  to  arrest 
him,  but  this  fact  not  being  known  to 
Adams.  And  this  is  the  extreme  case. 
Courts  have  not  gone  beyond  it. 

The  views  here  expressed  I  consider 
as  sustained  in  substance  by  the  cases 
of  Ex-parte  Smith ,  3  McLean,  1 38,  and 
Exparte  Heyward,  1  Sandford’s  Supe¬ 
rior  Court  Reports ,  706. 


Perhaps  precedent  to  the  question 
as  to  the  fugitive  character  of  the  ac- 
I  cused,  is  that  as  to  the  right  of  the 
Court  to  look  behind  the  Governor’s 
warrant,  into  the  affidavit  and  testi¬ 
mony.  There  seems  to  be  no  good 
reason  to  prevent  it.  The  Governor 
is  not  a  Court  of  general  jurisdiction, 
in  whose  record  is  absolute  verity.  He 
is  no  Court  at  all,  but  a  mere  ministe¬ 
rial  officer.  2  Marshall’s  Decisions, 
479.  And  that  his  warrant  is  not 
conclusive,  see  Exparte  Smith ,  above 
cited. 

For  these  reasons,  the  prisoner  will 
be  discharged.  For  many  reasons, 
the  Court  would  have  preferred  not  to 
decide  this  case,  but  to  wait  the  result 
of  the  writ  of  error  allowed  by  Judge 
Spalding  to  the  decision  of  the  Com¬ 
mercial  Court,  but  in  a  case  of  depri¬ 
vation  of  personal  liberty  no  such 
course  can  be  pursued.* 


*  The  decision,  it  is  proper  to  remark* 
which  was  pronounced  in  this  case,  was 
wholly  extempore,  and  without  notes,  and 
the  foregoing  has  been  written  since.  Of 
course,  it  differs  much  from  the  opinion 
as  expressed  orally. 


